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A guide to help you understand how to raise capital and comply with the federal
securities laws
In the chaotic securities markets of the 1920s, companies often sold stocks and bonds on
the basis of glittering promises of fantastic profits - without disclosing any meaningful
information to investors. These conditions contributed to the disastrous Stock Market Crash
of 1929. In response, the U.S. Congress enacted the federal securities laws and created the
Securities and Exchange Commission (SEC) to administer them.
There are two primary sets of federal laws that come into play when a company wants to
offer and sell its securities to the public. They are:
Securities Act
The Securities Act generally requires companies to give investors "full disclosure" of all
"material facts," the facts investors would find important in making an investment decision.
This Act also requires companies to file a registration statement with the SEC that includes
information for investors. The SEC does not evaluate the merits of offerings, or determine if
the securities offered are "good" investments. The SEC staff reviews registration statements
and declares them "effective" if companies satisfy our disclosure rules.
Exchange Act
The Exchange Act requires publicly held companies to disclose information continually about
their business operations, financial conditions, and managements. These companies, and in
many cases their officers, directors and significant shareholders, must file periodic reports
or other disclosure documents with the SEC. In some cases, the company must deliver the
information directly to investors.
Exemptions
Your company may be exempt from these registration and reporting requirements.
The SEC tries to meet the needs of small business through its rules and regulations. It also
offers informal guidance by answering your questions over the phone, through the mail or
by e-mail. The SEC offers you a number of ways to express your views and get help from
the staff. Of course, you should always retain competent counsel before engaging in any
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securities offering.
In 1996, we appointed a Special Ombudsman for Small Business to serve you and to
represent the concerns of smaller companies within the SEC. You can tell the Ombudsman
your concerns about any SEC proposal or rule. The Ombudsman also can answer your
general questions or help you find the answers to your specific questions. The
Ombudsman's telephone number is (202) 551-3460.
The Division of Corporation Finance's Office of Small Business directs the SEC's small
business rulemaking initiatives and comments on SEC rule proposals affecting small
companies. Its staff works with Congressional committees, government agencies, and other
groups concerned with small business. The Office also specializes in the review of filings
from small companies. Its telephone number is (202) 551-3460.
The Office of Small Business also sponsors small business town hall meetings across the
country. These meetings help the SEC convey basic information to small businesses and
learn more about the problems small businesses face in raising capital. These meetings help
the SEC design programs that meet small businesses' needs while protecting investors.
In addition to the town hall meetings, the SEC sponsors the Government-Business Forum on
Small Business Capital Formation. This annual meeting provides the only national forum for
small businesses to let government officials from different parts of the federal government
know how the laws, rules and regulations impact the ability of small companies to raise
capital. You can get more information about this forum from the Office of Small Business.
We also maintain a home page on the World Wide Web at http://www.sec.gov. Our site
includes recent SEC releases and other updating information of interest to small companies.
Through our Web site, small companies and investors can also find documents publicly filed
on the SEC's Electronic Data Gathering, Analysis, and Retrieval, or EDGAR, system. Most
registration statements and other documents must now be filed electronically via that
system.
When your company needs additional capital, "going public" may be the right choice, but
you should weigh your options carefully. If your company is in the very early stages of
development, it may be better to seek loans from financial institutions or the Small Business
Administration. Other alternatives include raising money by selling securities in transactions
that are exempt from the registration process. We discuss these alternatives later.
There are benefits and new obligations that come from raising capital through a public
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offering registered with the SEC. While the benefits are attractive, be sure you are ready to
assume these new obligations:
Benefits
• Your access to capital will increase, since you can contact more potential investors.
• Your company may become more widely known.
• You may obtain financing more easily in the future if investor interest in your
company grows enough to sustain a secondary trading market in your securities.
• Controlling shareholders, such as the company's officers or directors, may have a
ready market for their shares, which means that they can more easily sell their
interests at retirement, for diversification, or for some other reason.
• Your company may be able to attract and retain more highly qualified personnel if it
can offer stock options, bonuses, or other incentives with a known market value.
• The image of your company may be improved.
New Obligations
• You must continue to keep shareholders informed about the company's business
operations, financial condition, and management, incurring additional costs and new
legal obligations.
• You may be liable if you do not fulfill these new legal obligations.
• You may lose some flexibility in managing your company's affairs, particularly when
shareholders must approve your actions.
• Your public offering will take time and money to accomplish.
If you decide on a registered public offering, the Securities Act requires your company to file
a registration statement with the SEC before the company can offer its securities for sale.
You cannot actually sell the securities covered by the registration statement until the SEC
staff declares it "effective," even though registration statements become public immediately
upon filing.
• Part I is the prospectus, the legal offering or "selling" document. Your company - the
"issuer" of the securities - must describe in the prospectus the important facts about
its business operations, financial condition, and management. Everyone who buys
the new issue, as well as anyone who is made an offer to purchase the securities,
must have access to the prospectus.
• Part II contains additional information that the company does not have to deliver to
investors. Anyone can see this information by requesting it from one of the SEC's
public reference rooms or by looking it up on the SEC Web site.
All companies can use Form S-1 to register their securities offerings. You should not prepare
a registration statement as a fill-in-the-blank form, like a tax return. It should be similar to
a brochure, providing readable information. If you file this form, your company must
describe each of the following in the prospectus:
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• its business;
• its properties;
• its competition;
• the identity of its officers and directors and their compensation;
• material transactions between the company and its officers and directors;
• material legal proceedings involving the company or its officers and directors;
• the plan for distributing the securities; and the intended use of the proceeds of the
offering.
Information about how to describe these items is set out in SEC rules. Registration
statements also must include financial statements audited by an independent certified public
accountant.
In addition to the information expressly required by the form, your company must also
provide any other information that is necessary to make your disclosure complete and not
misleading. You also must clearly describe any risks prominently in the prospectus, usually
at the beginning. Examples of these risk factors are:
If your company qualifies as a "small business issuer," it can choose to file its registration
statement using one of the simplified small business forms. A small business issuer is a
United States or Canadian issuer:
• that had less than $25 million in revenues in its last fiscal year, and
• whose outstanding publicly-held stock is worth no more than $25 million.
Small business issuers offering up to $10 million worth of securities in any 12-month period
may use Form SB1. This form allows you to provide information in a question and answer
format, similar to that used in Regulation A offerings. Unlike Regulation A filings, Form SB-1
requires audited financial statements.
If your company is a "small business issuer," it may register an unlimited dollar amount of
securities using Form SB-2, and may use this form again and again so long as it satisfies
the "small business issuer" definition.
One advantage of Form SB-2 is that all its disclosure requirements are in Regulation S-B, a
set of rules written in simple, non-legalistic terminology. Form SB-2 also permits the
company to:
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SEC staff examines registration statements for compliance with disclosure requirements. If
a filing appears incomplete or inaccurate, the staff usually informs the company by letter.
The company may file correcting or clarifying amendments. Once the company has satisfied
the disclosure requirements, the staff declares the registration statement effective. The
company may then begin to sell its securities. The SEC can refuse or suspend the
effectiveness of any registration statement if it concludes that the document is misleading,
inaccurate, or incomplete.
Your company can become "public" in one of two ways - by issuing securities in an offering
registered under the Securities Act or by registering the company's outstanding securities
under Exchange Act requirements. Both types of registration trigger ongoing reporting
obligations for your company. In some cases, the Exchange Act also subjects your
company's officers, directors and significant shareholders to reporting requirements. Let's
discuss these requirements individually.
Once the staff declares your company's Securities Act registration statement effective, the
Exchange Act requires you to file reports with the SEC. The obligation to file reports
continues at least through the end of the fiscal year in which your registration statement
becomes effective. After that, you are required to continue reporting unless you satisfy the
following "thresholds," in which case your filing obligations are suspended:
• your company has fewer than 300 shareholders of the class of securities offered; or
• your company has fewer than 500 shareholders of the class of securities offered and
less than $10 million in total assets for each of its last three fiscal years.
If your company is subject to the reporting requirements, it must file information with the
SEC about:
• its operations;
• its officers, directors, and certain shareholders, including salary, various fringe
benefits, and transactions between the company and management;
• the financial condition of the business, including financial statements audited by an
independent certified public accountant; and
• its competitive position and material terms of contracts or lease agreements.
All of this information becomes publicly available when you file your reports with the SEC.
As is true with Securities Act filings, small business issuers may choose to use small
business alternative forms and Regulation S-B for registration and reporting under the
Exchange Act.
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Even if your company has not registered a securities offering, it must file an Exchange Act
registration statement if:
• it has more than $10 million total assets and a class of equity securities, like
common stock, with 500 or more shareholders; or
• it lists its securities on an exchange or on Nasdaq.
If a class of your company's securities is registered under the Exchange Act, the company,
as well as its shareholders and management, are subject to various reporting requirements,
explained below.
If your company registers a class of securities under the Exchange Act, it must file the same
annual, periodic, and current reports that are required as a result of Securities Act
registration, as explained above. This obligation continues for as long as the company
exceeds the reporting thresholds previously outlined. If your company's securities are
traded on an exchange or on Nasdaq, the company must continue filing these reports as
long as the securities trade on those markets, even if your company falls below the
thresholds.
Proxy rules
A company with Exchange Act registered securities must comply with the SEC's proxy rules
whenever it seeks a shareholder vote on corporate matters. These rules require the
company to provide a proxy statement to its shareholders, together with a proxy card when
soliciting proxies. Proxy statements discuss management and executive compensation,
along with descriptions of the matters up for a vote. If the company is not soliciting proxies
but will take a vote on a matter, the company must provide to its shareholders an
information statement that is similar to a proxy statement. The proxy rules also require
your company to send an annual report to shareholders if there will be an election of
directors. These reports contain much of the same information found in the Exchange Act
annual reports that a company must file with the SEC, including audited financial
statements. The proxy rules also govern when your company must provide shareholder lists
to investors and when it must include a shareholder proposal in the proxy statement.
If your company has registered a class of its equity securities under the Exchange Act,
persons who acquire more than five percent of the outstanding shares of that class must file
beneficial owner reports until their holdings drop below five percent. These filings contain
background information about the beneficial owners as well as their investment intentions,
providing investors and the company with information about accumulations of securities
that may potentially change or influence company management and policies.
Tender offers
A public company with Exchange Act registered securities that faces a takeover attempt, or
third party tender offer, should be aware that the SEC's tender offer rules will apply to the
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transaction. The same is true if the company makes a tender offer for its own Exchange Act
registered securities. The filings required by these rules provide information to the public
about the person making the tender offer. The company that is the subject of the takeover
must file with the SEC its responses to the tender offer. The rules also set time limits for the
tender offer and provide other protections to shareholders.
Section 16 of the Exchange Act applies to your company's directors and officers, as well as
shareholders who own more than 10% of a class of your company's equity securities
registered under the Exchange Act. It requires these persons to report their transactions
involving the company's equity securities to the SEC. Section 16 also establishes
mechanisms for a company to recover "short swing" profits, those profits an insider realizes
from a purchase and sale of a company security within a six-month period. In addition,
Section 16 prohibits short selling by these persons of any class of the company's securities,
whether or not that class is registered under the Exchange Act.
VI. Are There Legal Ways To Offer and Sell Securities Without Registering With the
SEC?
Yes! Your company's securities offering may qualify for one of several exemptions from the
registration requirements. We explain the most common ones below. You must remember,
however, that all securities transactions, even exempt transactions, are subject to the
antifraud provisions of the federal securities laws. This means that you and your company
will be responsible for false or misleading statements, whether oral or written. The
government enforces the federal securities laws through criminal, civil and administrative
proceedings. Some enforcement proceedings are brought through private law suits. Also, if
all conditions of the exemptions are not met, purchasers may be able to obtain refunds of
their purchase price. In addition, offerings that are exempt from provisions of the federal
securities laws may still be subject to the notice and filing obligations of various state laws.
Make sure you check with the appropriate state securities administrator before proceeding
with your offering.
Section 3(a)(11) of the Securities Act is generally known as the "intrastate offering
exemption." This exemption facilitates the financing of local business operations. To qualify
for the intrastate offering exemption, your company must:
There is no fixed limit on the size of the offering or the number of purchasers. Your
company must determine the residence of each purchaser. If any of the securities are
offered or sold to even one out-of-state person, the exemption may be lost. Without the
exemption, the company could be in violation of the Securities Act registration
requirements. If a purchaser resells any of the securities to a person who resides outside
the state within a short period of time after the company's offering is complete (the usual
test is nine months), the entire transaction, including the original sales, might violate the
Securities Act. Since secondary markets for these securities rarely develop, companies often
must sell securities in these offerings at a discount.
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It will be difficult for your company to rely on the intrastate exemption unless you know the
purchasers and the sale is directly negotiated with them. If your company holds some of its
assets outside the state, or derives a substantial portion of its revenues outside the state
where it proposes to offer its securities, it will probably have a difficult time qualifying for
the exemption.
You may follow Rule 147, a "safe harbor" rule, to ensure that you meet the requirements for
this exemption. It is possible, however, that transactions not meeting all requirements of
Rule 147 may still qualify for the exemption.
Section 4(2) of the Securities Act exempts from registration "transactions by an issuer not
involving any public offering." To qualify for this exemption, the purchasers of the securities
must:
• have enough knowledge and experience in finance and business matters to evaluate
the risks and merits of the investment (the "sophisticated investor"), or be able to
bear the investment's economic risk;
• have access to the type of information normally provided in a prospectus; and
• agree not to resell or distribute the securities to the public.
In addition, you may not use any form of public solicitation or general advertising in
connection with the offering.
The precise limits of this private offering exemption are uncertain. As the number of
purchasers increases and their relationship to the company and its management becomes
more remote, it is more difficult to show that the transaction qualifies for the exemption.
You should know that if you offer securities to even one person who does not meet the
necessary conditions, the entire offering may be in violation of the Securities Act.
Rule 506, another "safe harbor" rule, provides objective standards that you can rely on to
meet the requirements of this exemption. Rule 506 is a part of Regulation D.
C. Regulation A
Section 3(b) of the Securities Act authorizes the SEC to exempt from registration small
securities offerings. By this authority, we created Regulation A, an exemption for public
offerings not exceeding $5 million in any 12-month period. If you choose to rely on this
exemption, your company must file an offering statement, consisting of a notification,
offering circular, and exhibits, with the SEC for review.
Regulation A offerings share many characteristics with registered offerings. For example,
you must provide purchasers with an offering circular that is similar in content to a
prospectus. Like registered offerings, the securities can be offered publicly and are not
"restricted," meaning they are freely tradeable in the secondary market after the offering.
The principal advantages of Regulation A offerings, as opposed to full registration, are:
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• Companies may choose among three formats to prepare the offering circular, one of
which is a simplified question-and-answer document; and
• You may "test the waters" to determine if there is adequate interest in your
securities before going through the expense of filing with the SEC.
All types of companies which do not report under the Exchange Act may use Regulation A,
except "blank check" companies, those with an unspecified business, and investment
companies registered or required to be registered under the Investment Company Act of
1940. In most cases, shareholders may use Regulation A to resell up to $1.5 million of
securities.
If you "test the waters," you can use general solicitation and advertising prior to filing an
offering statement with the SEC, giving you the advantage of determining whether there is
enough market interest in your securities before you incur the full range of legal,
accounting, and other costs associated with filing an offering statement. You may not,
however, solicit or accept money until the SEC staff completes its review of the filed offering
statement and you deliver prescribed offering materials to investors.
D. Regulation D
Regulation D establishes three exemptions from Securities Act registration. Let's address
each one separately.
Rule 504
Rule 504 provides an exemption for the offer and sale of up to $1,000,000 of securities in a
12-month period. Your company may use this exemption so long as it is not a blank check
company and is not subject to Exchange Act reporting requirements. Like the other
Regulation D exemptions, in general you may not use public solicitation or advertising to
market the securities and purchasers receive "restricted" securities, meaning that they may
not sell the securities without registration or an applicable exemption. However, you can use
this exemption for a public offering of your securities and investors will receive freely
tradable securities under the following circumstances:
• You register the offering exclusively in one or more states that require a publicly filed
registration statement and delivery of a substantive disclosure document to
investors;
• You register and sell in a state that requires registration and disclosure delivery and
also sell in a state without those requirements, so long as you deliver the disclosure
documents mandated by the state in which you registered to all purchasers; or,
• You sell exclusively according to state law exemptions that permit general solicitation
and advertising, so long as you sell only to "accredited investors," a term we
describe in more detail below in connection with Rule 505 and Rule 506 offerings.
Even if you make a private sale where there are no specific disclosure delivery
requirements, you should take care to provide sufficient information to investors to avoid
violating the antifraud provisions of the securities laws. This means that any information
you provide to investors must be free from false or misleading statements. Similarly, you
should not exclude any information if the omission makes what you do provide investors
false or misleading.
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Rule 505
Rule 505 provides an exemption for offers and sales of securities totaling up to $5 million in
any 12-month period. Under this exemption, you may sell to an unlimited number of
"accredited investors" and up to 35 other persons who do not need to satisfy the
sophistication or wealth standards associated with other exemptions. Purchasers must buy
for investment only, and not for resale. The issued securities are "restricted." Consequently,
you must inform investors that they may not sell for at least a year without registering the
transaction. You may not use general solicitation or advertising to sell the securities.
Here are some specifics about the financial statement requirements applicable to this type
of offering:
Rule 506
As we discussed earlier, Rule 506 is a "safe harbor" for the private offering exemption. If
your company satisfies the following standards, you can be assured that you are within the
Section 4(2) exemption:
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Section 4(6) of the Securities Act exempts from registration offers and sales of securities to
accredited investors when the total offering price is less than $5 million.
The definition of accredited investors is the same as that used in Regulation D. Like the
exemptions in Rule 505 and 506, this exemption does not permit any form of advertising or
public solicitation. There are no document delivery requirements. Of course, all transactions
are subject to the antifraud provisions of the securities laws.
SEC Rule 1001 provides an exemption from the registration requirements of the Securities
Act for offers and sales of securities, in amounts of up to $5 million, that satisfy the
conditions of §25102(n) of the California Corporations Code. This California law exempts
from California state law registration offerings made by California companies to "qualified
purchasers" whose characteristics are similar to, but not the same as, accredited investors
under Regulation D. This exemption allows some methods of general solicitation prior to
sales.
G. Exemption for Sales of Securities through Employee Benefit Plans - Rule 701
The SEC's Rule 701 exempts sales of securities if made to compensate employees. This
exemption is available only to companies that are not subject to Exchange Act reporting
requirements. You can sell at least $1,000,000 of securities under this exemption, no
matter how small your company is. You can sell even more if you satisfy certain formulas
based on your company's assets or on the number of its outstanding securities. If you sell
more than $5 million in securities in a 12-month period, you need to provide limited
disclosure documents to your employees. Employees receive "restricted securities" in these
transactions and may not freely offer or sell them to the public.
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The federal government and state governments each have their own securities laws and
regulations. If your company is selling securities, it must comply with federal and state
securities laws. If a particular offering is exempt under the federal securities laws, that does
not necessarily mean that it is exempt from any of the state laws.
Historically, most state legislatures have followed one of two approaches in regulating public
offerings of securities, or a combination of the two approaches. Some states review small
businesses' securities offerings to ensure that companies disclose to investors all
information needed to make an informed investment decision. Other states also analyze
public offerings using substantive standards to assure that the terms and structure of the
offerings are fair to investors, in addition to the focus on disclosure.
In addition, a small company can use the SCOR Form, called Form U-7, to satisfy many of
the filing requirements of the SEC's Regulation A exemption, for sales of securities of up to
$5,000,000 since the company may file it with the SEC as part of the Regulation A offering
statement.
To assist small businesses offering in several states, many states coordinate SCOR or
Regulation A filings through a program called regional review. Regional reviews are available
in the New England, Mid-Atlantic, Midwest and Western regions.
VIII. What Resources Are Available Through the U.S. Small Business
Administration?
When assessing your capital needs, you should consider programs offered through the U.S.
Small Business Administration (SBA). Congress established the SBA in 1953 to aid, counsel,
and protect the interests of the Nation's small business community. The SBA accomplishes
this in part by working with intermediaries, banks, and other lending institutions to provide
loans and venture capital financing to small businesses unable to secure financing through
normal lending channels. The SBA offers financing through the programs listed below.
This is the SBA's primary lending program and was designed to meet the majority of the
small business lending community's financing needs. In addition to general financing, the
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7(a) program also encompasses a number of specialized loan programs. The following are a
few of the many specialized loan programs:
Low Doc
This program is designed to increase the availability of funds under $100,000 and
streamline or expedite the loan review process.
CAPLines
An umbrella program to help small businesses meet their short-term and cyclical working-
capital needs with five separate programs.
International Trade
DELTA
Defense Loan and Technical Assistance is a joint SBA and Department of Defense effort to
provide financial and technical assistance to defense-dependent small firms adversely
affected by cutbacks in defense.
Microloan Program
This program works through intermediaries to provide small loans from as little as $100 up
to $25,000.
This program, commonly referred to as the 504 program, makes long term loans available
for purchasing land, buildings, machinery and equipment, and for building, modernizing or
renovating existing facilities and sites.
Small Business Investment Companies (SBICs), which the SBA licenses and regulates, are
privately-owned and managed investment firms that provide venture capital and start-up
financing to small businesses.
To find additional information on these and other financial programs please contact your
local SBA District Office (call 1-800-8-ASK-SBA for the nearest office) or look on SBA's Web
site (http://www.sba.gov).
Additional Financial Resources and Information from the SBA's Office of Advocacy
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The Office of Advocacy of SBA has established an Internet site where small companies may
list their Regulation A and Regulation D 504/SCOR stock offerings. ACE-Net is a cooperative
effort between SBA and nine universities, state-based entities, and other non-profit
organizations to provide a listing service where small companies may list their stock offering
for review by high net worth investors (accredited investors). In addition, ACE-Net
anticipates providing mentoring and educational services for small companies needing
business planning and securities information. You can find the ACE-Net Internet site at the
following URLs: http://www.sba.gov/ADVO/ or http://www.ace-net.org.
The Office of Advocacy of SBA has ranked the nearly 10,000 banks in the country on a
state-by-state basis to determine which banks are "small business friendly." The state-by-
state directory helps small businesses locate which banks in their area are more likely to
lend to small business. The directory is available over the Internet at:
http://www.sba.gov/ADVO/stats/.
The staff of the SEC's Office of Small Business and the SEC's Small Business Ombudsman
will be glad to assist you with any questions you may have regarding federal securities laws.
For information about state securities laws, contact NASAA or your state's securities
administrator, whose office is usually located in your capital city.
The entire text of the SEC's rules and regulations is available through the U.S. Government
Printing Office or from several private publishers of legal information. In addition, numerous
books on this subject have been published, and some are available at public libraries. As of
this writing, the following volumes of Title 17 of the Code of Federal Regulations (the SEC's
rules and regulations) were available from the Government Printing Office:
• Vol. II - Parts 200 to 239. SEC Organization; Conduct and Ethics; Information and
Requests; Rules of Practice; Regulation S-X and Securities Act of 1933.
• Vol III - Parts 240 to End. Securities Exchange Act of 1934; Public Utility Holding
Company, Trust Indenture, Investment Company, Investment Advisers, and
Securities Investor Protection Corporation Acts.
Superintendent of Documents
Government Printing Office
Washington DC 20402-9325
Publications Section
U.S. Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549-0019
Telephone: (202)942-4046
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